United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
W. GETTLEMAN UNITED STATES DISTRICT JUDGE.
Lamonte Payton has brought a three count second amended
complaint against his former employer, defendant Light Bulb
Depot 28, LLC (“LBD”), alleging that his
employment was terminated based upon his race in violation of
Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C.
§ 1981. He has also named as defendants Damar Worldwide
4 LLC (“Damar”) and Domino Management Services,
LLC (“Domino”), alleging that he was jointly
employed by all three defendants. Count I is a claim for
violation of Title VII. Count II alleges retaliation in
violation of Title VII. Count III is a claim for violating
§ 1981 based upon his termination and/or retaliation.
All three counts are brought against all defendants. LBD and
Domino have answered the complaint. Damar has answered count
III and moved under Fed.R.Civ.P. 12(b)(6) to dismiss Counts I
and II for failure to state a claim against it. For the
reasons described below, Damar's motion is granted.
to the complaint, LBD is a corporation “organized,
existing and operating” within the jurisdiction of this
court. It is an employer subject to Title VII in that it is
in an industry affecting commerce and had 15 or more
employees in each of the 20 or more weeks in the current or
preceding calendar year. David Michael Marrs is the CEO and
President of LBD. Defendant Damar is a Nevada corporation
with its principle place of business in Aurora, Missouri.
Marrs is a managing member of Damar. Domino is a Florida
corporation with its principle place of business in Aurora,
Missouri. Marrs is the President of Domino.
2017 Domino placed an advertisement on Craig's List for a
warehouse/delivery driver for defendant LBD. Plaintiff
responded directly to Domino for the position. Domino ran a
background check on plaintiff and then hired plaintiff to
work at LBD. Domino signed plaintiff's employment
agreement, was in charge of creating and distributing
LBD's Team Member Handbook, as well as issuing and
certifying employee training for LBD employees. Domino also
handled payroll, insurance, and employee 401(k) plans for LBD
employees. LBD's employment policy regarding promotions,
raises and transfers required that Domino review and approve
any decisions made by LBD supervisors. All disciplinary
actions by LBD supervisors were reported to Domino on Damar
sells commercial and residential lighting products made by
Damar. Plaintiff began employment at LBD on July 3, 2017, as
a warehouse driver. On December 12, 2017, he complained to
the Human Resources Department at Domino that his supervisor
was discriminating against him because he was
African-American. According to plaintiff, the
non-African-American drivers were given flexibility with
their hours and allowed to take personal days on short
notice, while he was not. The supervisor became aware of
plaintiff's complaint and ordered plaintiff to remain in
the warehouse and not make deliveries. Plaintiff also
complained that he was sent to predominately low-income or
black neighborhoods while the non- African-American drivers
were sent to higher-income suburban locations.
April 16, 2018, plaintiff made another complaint against the
supervisor. The complaint was in writing, and claimed that
the supervisor screamed at plaintiff in front of his
co-workers and made him clock out early and take a late
lunch. Marrs asked plaintiff if he prepared the complaint.
Plaintiff said he did, but upon further questioning said that
his wife physically wrote the complaint because she had
better handwriting. Two days later, plaintiff was terminated
for allegedly lying to management about who prepared the
has moved to dismiss Counts I and II, brought under Title
VII, for failure to exhaust administrative remedies.
Specifically, Damar argues that plaintiff failed to name
Damar in his Equal Employment Opportunity Commission
(“EEOC') charge filed on December 10, 2018.
filing an action under Title VII, a plaintiff must first
exhaust administrative remedies by filing a timely EEOC
charge and receiving a right to sue letter. See Eggleston
v. Chicago Journeymen, Plumbers Local Union No. 130,
U.A., 657 F.2d 890, 905 (7th Cir. 1981). “It is
well settled that ordinarily a party not named in an EEOC
charge may not be sued under Title VII.” Id.
The purpose of the rule is to notify the charged party of the
alleged violation, and to give the EEOC an opportunity for
conciliation. Id. There is an exception. When the
plaintiff can prove that an unnamed party has been provided
with adequate notice of the charge, under circumstances where
the party has been given the opportunity to participate in
conciliation proceeding aimed at voluntary compliance, the
charge is sufficient to confer jurisdiction over that party.
instant case, plaintiff's EEOC charge names only LBD.
Plaintiff argues that the exception applies because all three
defendants are “close affiliates” and functioned
as a joint employer. In particular, plaintiff argues that
because Marrs is a managing member of each company, and each
company had the same members and officers, notice of the
charge against LBD was sufficient notice to Domino and Damar
facts might be sufficient to confer constructive notice on
Damar of the charge against LBD. But, as Judge Kendall noted
in Massey v. Churchview Supportive Living, Inc.,
2018 WL 999900 at *5 (N.D. Ill. Feb. 21, 2018), it is not
enough to allege that Damar had notice of the charge filed
against LBD. Plaintiff must also allege that Damar had notice
of the charge against Damar itself. Id. (citing
Alam v. Miller Brewing Co., 709 F.3d 662, 666 (7th Cir.
2013); Tamayo v. Blagojevich, 526 F.3d 1074, 1089
(7th Cir. 2008)).
factual statement in plaintiff's EEOC charge provides
only that plaintiff began his employment with LBD on July 3,
2017, as a driver and that he was subject to harassment on
December 12, 2017 and April 17, 2018. The facts do not allude
to Damar in any manner. Plaintiff's initial complaint in
the instant case named only LBD. The mere fact that Marrs was
aware of the charge against LBD does not mean that he was
aware of a charge against, or conciliated on behalf of Damar.
Indeed, the second amended complaint contains numerous
allegations to plausibly suggest that LBD and Domino acted as
a joint employer, but nothing to plausibly suggest that Damar